Annex I: Data Processing

 

This data protection agreement (“DPA”) is an annex to the ” Terms and Conditions for the Use of xpath.pro Service and xpath.global marketplace” (“Terms and Conditions”) between xpath.global as the Technology Provider and the Beneficiary, aiming to clarify the roles and responsibilities for data protection, based on obligations imposed by Article 28 of European Union Regulation 2016/679 (GDPR). This DPA applies solely to personal data processed by the Beneficiary within the Platform and not to any other data processing activities.

1. Terms
1.1. In the context of this contract, for all personal data processed by the Beneficiary in the xpath.pro Service as defined in the Terms and Conditions, depending on the legal data processor status of the Beneficiary:
a) The Beneficiary is the Data Controller, and the Technology Provider is the Data Processor; or
b) The Beneficiary is the Data Processor, and Technology Provider is the Data Sub-Processor.

1.2 If the Beneficiary is located outside the European Economic Area, the EU Standard Contractual Clauses from Article 14, adopted by the European Commission on 4 June 2021, will apply, with Modules 3 or 4 being applicable based on whether the Beneficiary is a Data Controller or a Data Processor according to Article 1.1. The appendices from the EU Standard Contractual Clauses will correspond to the content of this Data Processing Annex.

1.3. “Applicable Law” shall mean (i) Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons regarding the Processing of Personal Data and on the free movement of such data (the “GDPR”), and (ii) any data protection laws or regulations in the jurisdiction in which the Personal Data is processed.

1.4. In this agreement, all definitions from GDPR Article 4 will apply accordingly.

2. Subject matter and duration
The subject matter is as per the Terms and Conditions between the contracting parties. The duration of this agreement corresponds to the duration of the Terms and Conditions.

3. Nature and Purpose of the processing of Data
The processing of personal data by the Technology Provider for the Beneficiary is made for the sole purpose of providing the Platform service, by processing the Beneficiary’s data with the Expatriate Resource Management (ERM) system. The processing includes all operations performed on the collected personal data, solely by automated means, such as collection, recording, organization, structuring, storage, adaptation, or alteration, retrieval, consultation, use, alignment or combination, restriction, erasure, or destruction.

4. Collected data
The data collected for the purposes of this agreement includes all data imported or uploaded to the Platform directly or indirectly (for example via xpath.global marketplace) by the Beneficiaries directly or indirectly, as foreseen in the Terms and Conditions.

5. Categories of data subjects
The categories of data subjects are customers and partners of the Beneficiary.

6. Specific Instructions
6.1. The Beneficiary instructs the Technology Provider on processing all personal data specified in Article 3 to provide the services in the Terms and Conditions for the Use of xpath.pro Service and xpath.global marketplace.
6.2. The Beneficiary instructs the Technology Provider to directly transfer certain data (that might include personal data) to other companies selected by the Beneficiary, by providing them with relevant credentials (e.g., API keys) for each of them. For the avoidance of doubt, these companies are not sub-processors based on this contract.

7. Obligations of the Beneficiary

The Beneficiary:

•Confirms and guarantees that, concerning the processing of personal data for this contract, it acts as a Data Controller or Data Processor, depending on its particular situation, and thus, the following articles will apply accordingly;
•Complies with Applicable Law when processing personal data, and only gives lawful instructions to the Technology Provider;
•Guarantees that data subjects have been informed of the uses of personal data as required by Applicable Law, including about sharing their data with the Technology Provider, if required;
•Confirms it relies on a valid legal ground for the processing of personal data under Applicable Law, including, if required, obtaining consent from data subjects;
•Complies with Data Subject requests to exercise their rights of access, rectification, erasure, data portability, restriction of processing, and objection to the processing;
•Implements appropriate technical and organizational measures to ensure, and to be able to demonstrate, that the processing of personal data is performed in accordance with Applicable Law, including for securing the transfer of data from its data subjects to the Technology Provider;
•Cooperates with the Technology Provider to fulfill their respective data protection compliance obligations in accordance with Applicable Law;
•By providing an API key for integration to other data processors according to art 5.2, it confirms and guarantees its instruction to send the selected data to these companies and that the security of the transfer is being guaranteed by the Beneficiary or the other data processors. It also confirms that it has a proper legal basis for transferring the personal data to these companies.

8. Obligations of the Technology Provider
The Technology Provider shall only process personal data on behalf of the Beneficiary in accordance with specific instructions as outlined in Article 6 and for no other purposes than those specified in Article 3 or as mutually agreed upon in writing. For the avoidance of doubt, the Beneficiary authorizes the Technology Provider to utilize statistical data, based on information from the accounts of the Beneficiaries, to enhance our services or create benchmarks for internal or public presentations of relevant aggregated information for the selected domains. These shall always be based on aggregated data, making it impossible to link to any individual Beneficiary or personal data as per this agreement.

The Technology Provider will promptly inform the Beneficiary if, in its opinion, the Beneficiary’s instructions infringe upon GDPR and/or if the Technology Provider is unable to comply with the Beneficiary’s instructions. The Technology Provider will notify the Beneficiary without undue delay upon becoming aware of a personal data breach when the data is processed by the Technology Provider. The Technology Provider will take immediate steps to mitigate the effects and minimize any damage resulting from the personal data breach.

The Technology Provider will assist the Beneficiary in complying with data security, data breach notifications, data protection impact assessments, and prior consultations with supervisory authorities requirements under GDPR, if necessary, taking into account the nature of the processing and the information available to the Technology Provider. To the extent authorized under applicable law, the Beneficiary shall be responsible for any costs arising from the Technology Provider’s provision of such assistance. To the extent authorized by Applicable Law, the Beneficiary shall be responsible for any costs arising from the Technology Provider’s provision of such assistance.

The Technology Provider, taking into account the nature of the processing, will assist the Beneficiary with appropriate technical and organizational measures, insofar as this is possible, to fulfill Beneficiary obligations to respond to data subjects’ requests to exercise their rights as provided under Applicable Law.

Upon termination of the contract, the Technology Provider will delete or anonymize all personal data within a maximum of 90 days from the expiration date, unless the Controller requests them to be kept or if Romanian law prevents the return or destruction of all or part of the personal data, or requires the storage of the personal data (in which case the Technology Provider must keep them confidential).

9. Sub-processors
9.1. The Beneficiary agrees to the usage of the following specific sub-processors by the Technology Provider for IT services: Amazon Web Services (AWS), Stripe.
9.2. By this article, the Beneficiary grants a general authorization to the Technology Provider to share personal data with future Sub-Processors under the conditions set below:

The Technology Provider guarantees that it will have an agreement with its Sub-Processors imposing on the Sub-Processor the same data protection obligations as are imposed on the Technology Provider under this agreement or by Applicable Law, particularly providing sufficient guarantees to implement appropriate technical and organizational measures to ensure the processing meets requirements under Applicable Law, to the extent applicable to the nature of the service provided by the Sub-Processors. In case the Sub-Processor fails to fulfill its data protection obligations under such agreement, the Technology Provider shall remain fully liable towards the Beneficiary for the performance of the Sub-Processor’s obligations under such agreement.

The Technology Provider guarantees that all the sub-processors will process data exclusively within a Member State of the European Union (EU), within a Member State of the European Economic Area (EEA), or in any state with an adequate data protection regime as recognized by the European Commission or have signed adequate SCCs.

The Technology Provider shall inform the Beneficiary of any addition or replacement of Sub-Processors and allow the Beneficiary to reasonably object to such changes by notifying the Technology Provider in writing within five business days after receipt of Technology Provider’s notice of the addition or replacement of a Sub-Processor. The Beneficiary’s objection should explain the reasonable grounds for the objection.

10. Security of the processing and confidentiality
The Technology Provider must implement appropriate technical and organizational measures to ensure standard industry security measures appropriate to the risk, according to Article 28 and 82 of GDPR. In assessing the appropriate level of security, the Technology Provider must take into account the state of the art, the costs of implementation, the nature, scope, context, and purposes of processing, as well as the risk of varying likelihood and severity for the rights and freedoms of data subjects and the risks presented by the processing, particularly from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored, or otherwise processed. The Technology Provider shall take steps to ensure that any person acting under its authority who has access to personal data is bound by enforceable contractual or statutory confidentiality obligations.

In the case of transferring data to other companies as requested by the Beneficiary per Article 6.2, the Technology Provider is responsible for the security of the data only until the data has left its server.

11. Data Protection Audit
11.1. Upon prior written request by any Beneficiary, the Technology Provider agrees to cooperate and provide, within a reasonable timeframe, to any Beneficiary:
(a) a summary of the audit reports demonstrating the Technology Provider’s compliance with its obligations under this Exhibit, after redacting any confidential and commercially sensitive information; and
(b) confirmation that the audit has not revealed any material vulnerability in the Technology Provider’s systems, or to the extent that any such vulnerability was detected, that the Technology Provider has fully remedied such vulnerability.

11.2. If the above measures are insufficient to confirm compliance with GDPR or reveal any material issues, subject to the strictest confidentiality obligations, the Technology Provider allows the Beneficiary to request an audit of the Technology Provider’s data protection compliance program by external independent auditors, jointly selected by the parties. The external independent auditor cannot be a competitor of the Technology Provider, and the parties will mutually agree upon the scope, timing, and duration of the audit. The audit may not commence less than 30 days from the first request of the Beneficiary. The Technology Provider will make available to the Beneficiary the result of the audit of its data protection compliance program. The Beneficiary must fully reimburse the Technology Provider for all expenses and costs for such audit.

12. Liability to data subjects
12.1. Each party agrees that it will be liable to data subjects for the entire damage resulting from a violation of Applicable Law.
12.2. If one party paid full compensation for the damage suffered, it is entitled to claim back from the other party that part of the compensation corresponding to the other party’s responsibility for the damage. For this purpose, both parties agree that the Beneficiary will be liable to data subjects for the entire damage resulting from a violation of GDPR concerning the processing of personal data for which it is a Beneficiary. The Technology Provider will only be liable to data subjects for the entire damage resulting from a violation of the GDPR obligations directed to the Technology Provider or where it has acted outside or contrary to the Beneficiary’s lawful instructions.
12.3. The Technology Provider will be exempt from liability if it proves that it is not in any way responsible for the event giving rise to the damage.

13. Enforcing this agreement
This current arrangement will be in force starting from the date of entry into force of the Terms and Conditions until it is superseded by a new arrangement.

14. Standard Contractual Clauses (SCC)
The following Standard Contractual Clauses (SCC) will apply accordingly if the Beneficiary is located outside the European Economic Area, as explained in Article 1.3:

SECTION I
Clause 1

Purpose and scope
a.The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)1 for the transfer of personal data to a third country.
b.The Parties:

i. the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
ii. the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”) have agreed to these standard contractual clauses (hereinafter: “Clauses”).
c. These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
d. The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

a. These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

b. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Third-party beneficiaries

a.Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

i.  Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
ii. Clause 8 – Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);
iii.Clause 9 – Module Three: Clause 9(a), (c), (d) and (e);
iv. Clause 12 – Modules Three: Clause 12(a), (d) and (f);
v.  Clause 13;
vi. Clause 15.1(c), (d) and (e);
vii.Clause 16(e);
viii.Clause 18 – Modules Three: Clause 18(a) and (b); Module Four: Clause 18.

b. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

a.Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
b.These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
c.These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7

Docking clause

a. An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
b. Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
c. The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

MODULE THREE: Transfer processor to processor
8.1 Instructions

a. The data exporter has informed the data importer that it acts as processor under the instructions of its controller(s), which the data exporter shall make available to the data importer prior to processing.
b. The data importer shall process the personal data only on documented instructions from the controller, as communicated to the data importer by the data exporter, and any additional documented instructions from the data exporter. Such additional instructions shall not conflict with the instructions from the controller. The controller or data exporter may give further documented instructions regarding the data processing throughout the duration of the contract.
c. The data importer shall immediately inform the data exporter if it is unable to follow those instructions. Where the data importer is unable to follow the instructions from the controller, the data exporter shall immediately notify the controller.
d. The data exporter warrants that it has imposed the same data protection obligations on the data importer as set out in the contract or other legal act under Union or Member State law between the controller and the data exporter.

8.2 Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B., unless on further instructions from the controller, as communicated to the data importer by the data exporter, or from the data exporter.

8.3 Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the data exporter may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information.

8.4 Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to rectify or erase the data.

8.5 Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the controller and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to

Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6 Security of processing

a. The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter or the controller. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
b. The data importer shall grant access to the data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
c. In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify, without undue delay, the data exporter and, where appropriate and feasible, the controller after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the data breach, including measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
d. The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify its controller so that the latter may in turn notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards set out in Annex I.B.

8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the controller, as communicated to the data importer by the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union6 (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

i. the onward transfer is to a country benefiting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
ii. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679;
iii. the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
iv. the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9 Documentation and compliance

a. The data importer shall promptly and adequately deal with enquiries from the data exporter or the controller that relate to the processing under these Clauses.
b. The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the controller.
c. The data importer shall make all information necessary to demonstrate compliance with the obligations set out in these Clauses available to the data exporter, which shall provide it to the controller.
d. The data importer shall allow for and contribute to audits by the data exporter of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. The same shall apply where the data exporter requests an audit on instructions of the controller. In deciding on an audit, the data exporter may take into account relevant certifications held by the data importer.
e. Where the audit is carried out on the instructions of the controller, the data exporter shall make the results available to the controller.
f. The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
g. The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

MODULE FOUR: Transfer processor to controller
8.1 Instructions

a. The data exporter shall process the personal data only on documented instructions from the data importer acting as its controller.
b. The data exporter shall immediately inform the data importer if it is unable to follow those instructions, including if such instructions infringe Regulation (EU) 2016/679 or other Union or Member State data protection law.
c. The data importer shall refrain from any action that would prevent the data exporter from fulfilling its obligations under Regulation (EU) 2016/679, including in the context of sub-processing or as regards cooperation with competent supervisory authorities.
d. After the end of the provision of the processing services, the data exporter shall, at the choice of the data importer, delete all personal data processed on behalf of the data importer and certify to the data importer that it has done so, or return to the data importer all personal data processed on its behalf and delete existing copies.

8.2 Security of processing

a. The Parties shall implement appropriate technical and organisational measures to ensure the security of the data, including during transmission, and protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (hereinafter “personal data breach”). In assessing the appropriate
level of security, they shall take due account of the state of the art, the costs of
implementation, the nature of the personal data7, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects, and in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner.
b. The data exporter shall assist the data importer in ensuring appropriate security of the data in accordance with paragraph (a). In case of a personal data breach concerning the personal data processed by the data exporter under these Clauses, the data exporter shall notify the data importer without undue delay after becoming aware of it and assist the data importer in addressing the breach.
c. The data exporter shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

8.3 Documentation and compliance

a. The Parties shall be able to demonstrate compliance with these Clauses.
b. The data exporter shall make available to the data importer all information necessary to demonstrate compliance with its obligations under these Clauses and allow for and contribute to audits.

Clause 9 Use of sub-processors
MODULE THREE: Transfer processor to processor

a. OPTION 2: GENERAL WRITTEN AUTHORISATION The data importer has the controller’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the controller in writing of any intended changes to that list through the addition or replacement of sub- processors at least [Specify time period] in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the controller with the information necessary to enable the controller to exercise its right to object. The data importer shall inform the data exporter of the engagement of the sub-processor(s).
b. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the controller), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.9 The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
c. The data importer shall provide, at the data exporter’s or controller’s request, a copy of such a sub-processor agreement and any subsequent amendments. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
d.The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfil its obligations under that contract.
e. The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10

Data subject rights
MODULE THREE: Transfer processor to processor

a.The data importer shall promptly notify the data exporter and, where appropriate, the controller of any request it has received from a data subject, without responding to that request unless it has been authorised to do so by the controller.
b. The data importer shall assist, where appropriate in cooperation with the data exporter, the controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
c. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the controller, as communicated by the data exporter.

MODULE FOUR: Transfer processor to controller
The Parties shall assist each other in responding to enquiries and requests made by data subjects under the local law applicable to the data importer or, for data processing by the data exporter in the EU, under Regulation (EU) 2016/679

Clause 11

Redress

a.The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

MODULE THREE: Transfer processor to processor

b. In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
c. Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

i. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
ii. refer the dispute to the competent courts within the meaning of Clause 18.
d. The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
e. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
f. The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability
MODULE FOUR: Transfer processor to controller

a. Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
b. Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter under Regulation (EU) 2016/679.
c. Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
d. The Parties agree that if one Party is held liable under paragraph (c), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
e. The data importer may not invoke the conduct of a processor or sub-processor to avoid its own liability.

MODULE THREE: Transfer processor to processor

a. Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
b. The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
c. Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
d. The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
e. Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
f. The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
g. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision
MODULE THREE: Transfer processor to processor

b.The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14

Local laws and practices affecting compliance with the Clauses
MODULE THREE

a. The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
b.The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

i.the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
ii.the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards12;
iii.any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

c.The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
d.The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
e. The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). The data exporter shall forward the notification to the controller.
f. Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confientiality) to be adopted by the data exporter and/or data importer to address the situation, if appropriate in consultation with the controller.

•The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the controller or the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15

Obligations of the data importer in case of access by public authorities

15.1 Notification

a. The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary, with the help of the data exporter) if it:

i. receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include
information about the personal data requested, the requesting authority, the legal
basis for the request and the response provided; or
ii. becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
• The data exporter shall forward the notification to the controller.
b. If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
c. Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
• The data exporter shall forward the information to the controller.
d. The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
e. Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2 Review of legality and data minimisation

a.The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
b. The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request. In case of Module 3, the data exporter shall make the assessment available to the controller.
c. The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination
a. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
b. In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
c. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

i. the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
ii. the data importer is in substantial or persistent breach of these Clauses; or
iii. the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
• In these cases, it shall inform the competent supervisory authority and the controller, for Module 3, of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

d. For Module Three: Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. For Module Four: Personal data collected by the data exporter in the EU that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall immediately be deleted in its entirety, including any copy thereof. The
data importer shall certify the deletion of the data to the data exporter. Until the data is
deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
e. Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing law
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Romania.

Clause 18 Choice of forum and jurisdiction

a. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
b. The Parties agree that those shall be the courts of Romania
c. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
d. The Parties agree to submit themselves to the jurisdiction of such courts.